The West Virginia Supreme Court recently undertook an examination of an issue that some may perceive as less than consequential. Some harbor an expectation that appellate courts will generally be engaged in wrestling with significant and complex questions, questions that go to the heart of the law, affect many, and pose a significant impact. In recent years, we have seen such interpretations in Florida (Castellanos (April 2016)), Kentucky (Livingood, Goodgame (October 2015)), Pennsylvania (Protz (June 2017), Utah (Injured Workers Association (May 2017)), and more.
But, the West Virginia Supreme Court invested eleven pages into refuting the old adage "there ain't no such thing as a free lunch," the origins of which are less than clear. But, in this case, the lunch was $37 and the dispute was over whether the injured worker or the employer should pay the bill. Of course, every case is different and some might present a multitude of complex issues while others present a single rudimentary issue. But, I have heard that appeals can cost thousands of dollars. If the appeal in this instance costs even $1,000 to defend, that is about 27 times the $37 that lunch costs.
In Silveti v. Ohio Valley Nursing Home, ___ SE.3d ____ (WV 2018)(Case no. 17-0746, April 11, 2018), the dispute began when a "claims administrator ordered Mr. Silveti to attend a medical examination." The administrator had questions regarding the medical necessity of "Mr. Silveti’s current treatment," and "whether he had achieved maximum medical improvement." The examination was about 100 miles from the workers' home. As a result, he spent "six hours (from 11:00 am to 5:00 pm) traveling to, attending, and returning from his medical examination." The Court noted that local providers might have instead performed the examination. That conclusion was perhaps not based upon evidence adduced in the case, but the Court's own research on the Internet.
And, in the course of that trip, the worker stopped for lunch. He spent $37.00 and asked the employer or insurance carrier to reimburse him for the meal. The administrator declined to reimburse, and Mr. Silveti appealed that decision to the Workers’ Compensation Office of Judges, which affirmed the denial. Mr. Silveti sought review by the Workers’ Compensation Board of Review, which affirmed the trial judge. He thereafter sought review by the West Virginia Supreme Court, leading to this explanation.
The Supreme Court provides an analysis of West Virginia Code § 23-4-8, which requires reimbursement of "reasonable traveling expenses" associated with such an examination. Those expenses are delineated in the statute as "at a minimum, reimbursement for meals, lodging, and milage (a variant spelling of mileage, according to Webster's)."
The Court explained the administrator's decision, based upon a regulation, "West Virginia Code St. R. § 85-1-15.1." This regulation says
In determining the reasonableness of [travel expenses incurred in connection with a medical examination], the responsible party shall utilize the travel regulations for State employees as a guide[.]
And, the State employees in West Virginia are reimbursed for meals only if the travel requires " overnight lodging." As Mr. Silveti's travel did not require an overnight stay, the administrator, trial judge and Board concluded, he was not entitled to meal reimbursement. The Court noted that:
"the employer argues that the Insurance Commissioner’s interpretation of workers’ compensation laws, as reflected in the workers’ compensation regulations, should be accorded deference."
As an aside, the same "overnight lodging" requirement applies to state employee travel in Florida. I once departed home in the early a.m., driving 5 hours to Gainesville and arriving in time for the morning docket (losing an hour to the time zone change). Present in that District all day (before the widespread installation of the OJCC videoteleconfence system), I departed in the late afternoon for the 5-hour trip home. Though overall it was about a 20 hour day, I was not eligible for reimbursement of my $6.00 lunch because I had elected not to travel down the day before and rent a hotel room. When meals are reimbursable, Florida pays the following: breakfast $6.00, lunch $11.00, and dinner $19.00, regardless of actual cost.
The Court conceded that deference is the norm for regulations in West Virginia. However, it concluded that such deference was not appropriate in this case. In this instance, the Court said, the "plain language" of the statute required reimbursement for the meal. As the statutory language was clear, it was not subject to interpretation. The Court concluded that the statute says "shall" pay travel reimbursement, and that includes meals. Thus, there was not need for the Insurance Commissioner's interpretation (regulation). By that interpretation, the claims administrator "gave" Mr. Silveti "less than what the statute required."
The Court then discussed "reasonableness." It noted
"there is already a regulation in place, West Virginia Code St. R. § 148-NA-4.1 limiting reimbursement for meal expenses so that it does not exceed the per diem rate established by the federal government for state employee travel."
Thus, the Court concluded that one West Virginia regulation could not be afforded deference, but another could (or should) have been utilized in determining the reasonableness of reimbursement. And, the Court does not explain how a limitation to the "per diem," which is not in the statute, is different from a limitation based on "overnight lodging," which is not in the statute. The Court reversed the Board's reliance upon one reasonableness regulation and deferred instead to another. Whether the second (per diem) was pled and argued by the parties or discovered and cited by the Court independently is not known.
The Court was not unanimous. Justice Walker dissented. Justice Walker stressed that the "overnight lodging" regulation was specifically for "determining the reasonableness" of reimbursement. This, the judge contended, provided the marketplace (and all involved) "a binary rule to determine when a claimant’s meal was a “reasonable travel expense,” and, therefore, reimbursable." By "binary," the justice means a "bright line" test in which the question is "yes" or "no," and the analysis is simple. Justice Walker also noted that the reliance on "per diem" was perhaps less than helpful as it depends on terms that are not well defined, leading to ambiguity.
Justice Walker contends that the Silveti decision results in a "defacto rule that will emerge from the majority's opinion." That rule, the justice explains, will result in some meals being reimbursable and others not, depending on a somewhat subjective standard. And therefore, a similar outcome as that effectuated by the Insurance Commissioner's regulation on "reasonableness" and "overnight lodging." The dissent argues that the Court has not eliminated arbitrariness or disparity, but merely changed the standard for such from a duly promulgated state regulation to a "de facto" regulation of the Court's own making.
Thus, for want of a sandwich a significant expenditure in litigation time and money. It seems likely that the overall cost of this appellate process would pay for many "reasonable lunches" and perhaps many $37.00 ones. Whether $37 for lunch is or is not "reasonable" will now be for the claims examiner to determine with the "per diem" analysis. Mr. Silveti will either be satisfied with the outcome of that analysis or not. Time will tell whether Silveti v. Ohio Valley Nursing Home resolves uncertainty and promotes predictability or whether it substitutes a new arbitrariness (per diem) for an old (overnight lodging), as suggested by the dissent.
Finally, it is worth noting that disputes are inherent in statutory interpretation. Across the country, workers' compensation statutes define what measure of benefits will be due in each particular jurisdiction. Despite significant thought and efforts, the fact is that those statutes are not always clear, interpretations differ, and litigation ensues. However, most of those disputes over $37 do not reach a jurisdiction's highest court.
